ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20190006697 APPLICANT REQUESTS: The applicant requests upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 10 September 1982 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was told that his discharge would be automatically changed from under honorable conditions to honorable after six months. 3. On 10 November 1981, at the age of 18 years old, the applicant enlisted in the Regular for a term of 3 years. After completing one station unit training, he was assigned to an overseas location in Germany. 4. On 21 July 1982, he accepted nonjudicial punishment for being drunk and disorderly in a public place in Germany and for failing to obey a lawful order issued by the commanding general. 5. On 3 August 1982, the immediate commander initiated a bar to reenlistment against the applicant for having a record of nonjudicial punishment and receiving numerous counseling statements for: * failing to report to appointed place of duty * disobeying an order to clean the guard shack * letting unauthorized personnel through the back gate while on duty * disobeying an order to remain in complete uniform * disobeying an order to clean his room * disrespecting a noncommissioned officer * failing to comply with regulation on haircuts 6. In August 1982, the applicant's immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)). a. Section I: (1) It states the reasons for this action were his extremely poor adjustment to military service as demonstrated by his repeated failures to follow the instructions of his supervisors and his drunk and disorderly conduct in an off limits area which resulted in an Article 15, Uniform Code of Military Justice (UCMJ) (nonjudicial punishment). (2) The commander lined through the statement "You have the right to decline this discharge. If you do decline and your subsequent conduct indicates that such action is warranted, you may be subjected to disciplinary or elimination separation procedures or regulation." b. Section II: The applicant acknowledged he had been notified of the pending separation action against him. The applicant lined through the statements "I do, I do not voluntarily consent to this discharge"; therefore not making an election. He did not indicate whether or not a statement was submitted with the form. In paragraphs 4 and 5, he lined though statements which mentioned voluntarily consenting to the discharge. 7. The appropriate commander approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate. On 10 September 1982, the applicant was discharged with a characterization of under honorable conditions. He completed 10 months and 1 day of net active service this period with 6 months and 10 days of Foreign Service. His DD Form 214, shows he was awarded or authorized: * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Army Service Ribbon * Overseas Service Ribbon 8. The applicant states he was told that his discharge would be automatically changed from under honorable conditions to honorable after six months. His record shows he enlisted at the age of 18 years old, he accepted one NJP for being drunk and disorderly and disobeying an order, a bar to reenlistment certificate was initiated against the applicant; which indicated that he has been counseled on several occasions. The applicant was not given the option to decline the discharge evidenced by the notification. 9. In 1973, U.S. Army initiated the Expeditious Discharge Program as a test; it gave commanders the opportunity to separate unproductive Soldiers who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army. The program required Soldiers to voluntarily accept discharge and they could receive either an honorable or general discharge. 10. AR 635-200, paragraph 5-31 (Expeditious Discharge Program). Commanders could separate Soldiers under this program when they demonstrated they could/would not meet the Army's accepted standards for enlisted personnel, based on one or more of the following: having a poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. They had to have served at least 6, but not more than 36 months. Soldiers were not separated unless they voluntarily accepted discharge, and they could receive either an honorable or an under honorable conditions (general) character of service. Interim Change 4 to AR 635-200, dated 1 April 1982, eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the Expeditious Discharge Program. There has never been any provision for an automatic upgrade of a discharge less than fully honorable. 11. AR 635-200, paragraph 5-3 (Secretarial Authority) states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, the bar to reenlistment and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. The Department of the Army began testing the Expeditious Discharge Program (EDP) in October 1973. In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable. 3. Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-31 (Expeditious Discharge Program). Commanders could separate Soldiers under this program when they demonstrated they could/would not meet the Army's accepted standards for enlisted personnel, based on one or more of the following: having a poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. They had to have served at least 6, but not more than 36 months. Soldiers were not separated unless they voluntarily accepted discharge, and they could receive either an honorable or an under honorable conditions (general) character of service. Interim Change 4 to Army Regulation 635-200, dated 1 April 1982, eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the Expeditious Discharge Program. 4. AR 635-200, paragraph 5-3 (Secretarial Authority), in effect at the time, stated, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20190006697 6 1